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on the processing of paperwork and return of her license, in 

the absence of being specifically told, was not sufficient to 

warrant the giving of the instruction. We affirm the judgment 

of the district court, which affirmed the judgment of the county 

court for Platte County.

Affirmed

Anthony K. and Arva K., individ

as guardians and next friends on b

of their minor children, Ashley

et al., appellants, v. State 

Nebraska et al., appellees.

___ N.W.2d ___

Filed November 21, 2014. No. S-13-446.

1. Jurisdiction: Appeal and Error. The question of jurisdiction is a question of 

law, which an appellate court resolves independently of the trial court.

2. Motions to Dismiss: Appeal and Error. A district court’s grant of a motion to 

dismiss is reviewed de novo.

3. Motions to Dismiss: Immunity: Appeal and Error. An appellate court reviews 

de novo whether a party is entitled to dismissal of a claim based on federal or 

state immunity, drawing all reasonable inferences for the nonmoving party.

4. Summary Judgment: Appeal and Error. In reviewing a summary judgment, an 

appellate court views the evidence in the light most favorable to the party against 

whom the judgment was granted, and gives that party the benefit of all reasonable 

inferences deducible from the evidence.

5. Constitutional Law: States: Immunity. The immunity of states from suit is a 

fundamental aspect of the sovereignty which the states enjoyed before ratification 

of the federal Constitution and which they retain today.

6. Actions: States. It is inherent in the nature of sovereignty for a state not to be 

amenable to the suit of an individual without its consent.

7. Constitutional Law: Legislature: Immunity: Waiver. Neb. Const. art. V, § 22, 

provides that the State may sue and be sued and that the Legislature shall provide 

by law in what manner and in what courts suits shall be brought. The State is 

permitted to lay its sovereignty aside and consent to be sued on such terms and 

conditions as the Legislature may prescribe.

8. Appeal and Error. An appellate court is not obligated to engage in an analysis 

that is not necessary to adjudicate the case and controversy before it.

Appeal from the District Court for Douglas County: J Russel

Derr, Judge. Affirmed
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Amy Sherman, of Sherman & Gilner, P.C., L.L.O., for 

appellants.

Jon Bruning, Attorney General, and John L. Jelkin for 

appellees.

Heavican, C.J., Wright, Connolly, Stephan, M

and Miller-Lerman, JJ., and Bishop, Ju

Wright, J.

I. NATURE OF CASE

This action was brought under 42 U.S.C. § 1983 (2012) 

by Anthony K. and Arva K., individually and as guardians 

and next friends on behalf of their seven minor children. 

The plaintiffs sued the State of Nebraska, the Department of 

Health and Human Services (DHHS), 18 DHHS employees 

in their official and individual capacities, and the children’s 

guardian ad litem. The plaintiffs sought general and special 

damages for a violation of their constitutionally protected 

rights to familial integrity, due process, and equal protection. They challenged the constitutionality of Neb. Rev. Stat. 

§§ 43-283.01 and 43-1312 (Cum. Supp. 2012) and asked the 

Douglas County District Court to temporarily and permanently 

enjoin the application of the statutes in the State of Nebraska 

and strike them down. This is the first of two related cases 

filed by the plaintiffs.

Upon the defendants’ motion to dismiss, the district court 

concluded that only the State had been properly served and 

it dismissed all the remaining defendants for lack of proper 

service. At that time, the court also determined that the State 

was entitled to sovereign immunity as to the plaintiffs’ § 1983 

claims that requested monetary damages. As to the plaintiffs’ 

remaining causes of action against the State, the court sustained the State’s motion for summary judgment and dismissed 

the plaintiffs’ complaint. For the reasons discussed below, we 

affirm the dismissal of the plaintiffs’ complaint.

II. SCOPE OF REVIEW

[1] The question of jurisdiction is a question of law, which 

an appellate court resolves independently of the trial court. 
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In re Estate of McKillip, 284 Neb. 367, 820 N.W.2d 868 

(2012).

[2] A district court’s grant of a motion to dismiss is reviewed 

de novo. Estate of Teague v. Crossroads Co-op Assn., 286 Neb. 

1, 834 N.W.2d 236 (2013).

[3] We review de novo whether a party is entitled to dismissal of a claim based on federal or state immunity, drawing 

all reasonable inferences for the nonmoving party. Michael E. 

v. State, 286 Neb. 532, 839 N.W.2d 542 (2013).

[4] In reviewing a summary judgment, an appellate court 

views the evidence in the light most favorable to the party 

against whom the judgment was granted, and gives that party 

the benefit of all reasonable inferences deducible from the 

evidence. Cartwright v. State, 286 Neb. 431, 837 N.W.2d 

521 (2013).

III. FACTS

1. Juvenile Ca

On February 12, 2000, the plaintiffs left their oldest three 

minor children, Ashley K.; Anthony K., Jr. (Anthony Jr.); 

and Ali K., unattended for 1 to 2 hours. Anthony notified 

authorities that the children had been left alone. Following 

the incident, the children were removed from the family 

home by police. During the pendency of the juvenile case 

involving Ashley, Anthony Jr., and Ali, four other children 

were born to the plaintiffs. None of the other children were 

removed from the home and were not the subjects of the 

juvenile case.

On February 14, 2000, a petition was filed in the Lancaster 

County Separate Juvenile Court alleging that Ashley, Anthony 

Jr., and Ali lacked proper parental care by reason of the fault 

or habits of the plaintiffs. Richard Bollerup was appointed as 

the guardian ad litem for the minor children. Eighteen DHHS 

caseworkers, case managers, or administrators were involved 

in the case at various times over the next 9 years.

As part of the reunification plan, the court ordered Anthony 

to undergo intensive outpatient therapy for substance abuse, 

ordered the family to participate in family therapy, and ordered 

the plaintiffs to maintain a safe and stable home for the 
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children. The plaintiffs were granted visitation three times a 

week, which included overnight visits.

On May 25, 2000, the children were placed back in the 

plaintiffs’ home. Initial case closure was scheduled for April 

2001. In March 2001, the plaintiffs were evicted from their residence. Arva temporarily separated from Anthony and moved 

into a city mission in Lincoln, Nebraska, with the children. 

DHHS staff reported at this time that the plaintiffs were not 

participating in services consistently, Ashley had been late or 

absent from school, and Anthony had not entered alcohol treatment. On March 28, a hearing was held and the juvenile court 

ordered that the three oldest children be removed from the 

home and that Anthony be subject to random alcohol screenings. The new goal for case closure was set for October 2002, 

but was later extended to April 2003.

The children continued to remain in out-of-home placement 

due to the “‘lack of compliance with the plan as ordered by 

the Court.’” This included Anthony’s failure to show completion of alcohol treatment and the plaintiffs’ continued need 

to further demonstrate stability in their living situation. Case 

closure was extended to September 2003, then to February and 

December 2004, and finally to March 2005. Each time, the 

stated reasons were because Anthony failed to show completion of substance abuse treatment and the plaintiffs failed to 

show a stable living situation.

The plaintiffs attempted to complete the requirements 

DHHS set forth in its plan for reunification. Anthony completed an alcohol treatment program, but could not produce a 

certificate for the court because he could not afford to pay the 

final bill. The continued reasons for out-of-home placement 

of the three minor children included Anthony’s failing to produce the certificate of completion for his alcohol dependency 

program and neither Anthony’s nor Arva’s having a valid 

driver’s license, as well as the plaintiffs’ not having a big 

enough car for all their children, not participating in therapy 

to DHHS’ satisfaction, and not complying with the plan for 

reunification. Anthony continually tested negative for drugs 
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and alcohol, although he was cited for driving while under 

the influence.

In July 2005, the plaintiffs attended a meeting with Todd 

Reckling and Chris Peterson, administrators at DHHS. At the 

meeting, Reckling and Peterson apologized for the length of 

time for the case and informed the plaintiffs that they needed 

to act quickly to reunify their family or the Lancaster County 

Attorney was going to file a motion to terminate their parental rights. On July 14, the Lancaster County Attorney filed 

a motion to terminate the plaintiffs’ parental rights. DHHS 

employees recommended that the children be returned to the 

family home.

In 2006, a Foster Care Review Board report recommended 

reunification, noting that “‘case manager turnover, changes 

in visitation schedules and in the permanency objective being 

sought appear[ed] to have been more detrimental to the children than if reunification had occurred’” and that those issues 

had “‘as much impact on the children’s prolonged time in care 

as the parent’s lack of progress.’” However, it also noted that 

the plaintiffs’ lack of participation in services had contributed 

to the children’s remaining in out-of-home placement.

In 2006, Ashley, Anthony Jr., and Ali were sent to South 

Carolina to live with their grandparents. The plaintiffs initially 

agreed to a guardianship with the grandparents, but later did 

not agree to the guardianship, stating they were pressured into 

agreeing to it. DHHS staff advised the plaintiffs at that time 

that DHHS would seek to terminate their parental rights.

On March 14, 2008, DHHS noted that the guardianship 

with the grandparents was no longer the permanency objective and requested that the county attorney refile for termination of parental rights as to Ashley, Anthony Jr., and Ali. The 

juvenile court found that grounds for termination did not exist 

and ordered the children returned to their parents and the case 

closed. The plaintiffs and their four other children moved to 

South Carolina to be closer to the three oldest children. In 

November 2008, Ashley, Anthony Jr., and Ali were formally 

placed in the care of the plaintiffs.
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2. Procedural Histo

The plaintiffs filed the present lawsuit on February 5, 2010. 

In it, they named as defendants the State; DHHS; 18 DHHS 

employees who were assigned at various times to Ashley, 

Anthony Jr., and Ali’s juvenile case as caseworkers, case managers, or administrators; and the children’s guardian ad litem. 

The case was brought pursuant to 42 U.S.C. § 1983. In the 

complaint, they alleged six “causes of action.” Those were 

(1) general violations of the plaintiffs’ constitutional rights, 

including familial integrity, due process, and equal protection; (2) violation of the plaintiffs’ constitutionally protected 

right to familial integrity, because reasonable efforts were not 

made by DHHS to reunify the family; (3) violation of equal 

protection, because the plaintiffs had to comply with arbitrary 

requirements established by DHHS before they were reunited 

as a family; (4) facial challenge of § 43-283.01, which requires 

reasonable efforts to preserve and reunify the family; (5) as 

applied challenge of § 43-283.01; and (6) as applied challenge 

of § 43-1312, which requires a plan or permanency plan for 

children placed in foster care. The plaintiffs requested general 

and special damages for the first three causes of action and 

temporary and permanent injunctions for the latter three causes 

of action.

On April 22, 2010, the plaintiffs filed 18 praecipes for summons with the clerk of the district court for service of summons upon the DHHS employees at DHHS. The plaintiffs 

filed a praecipe for summons via certified mail for service 

upon DHHS at 301 Centennial Mall South, Lincoln, Nebraska 

68509, and a praecipe for service upon Attorney General Jon 

Bruning at 2115 State Capitol, Lincoln, Nebraska 68509. They 

were unable to locate the guardian ad litem and moved for 

alternative service. The record is unclear whether the motion 

for alternative service was sustained or overruled, but there is 

no indication that the guardian ad litem was ever served in this 

case, and he did not enter an appearance.

On May 3, 2010, the certified mail for DHHS and the 

DHHS employees was received and signed for at DHHS. The 

certified mail receipts were signed for by John Hayden, a 

DHHS employee whose duty was to sign for and receive all 
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certified mail addressed to DHHS. Hayden did not conduct 

an investigation whether each individual named on the certified mail was actually an employee of DHHS, and he had no 

personal knowledge whether the named individual actually 

received the certified mail for which he had signed a receipt. 

Hayden was not an agent for any of the DHHS employees, 

did not reside with them, and was not one of their family members.

On May 3, 2010, only 3 of the 18 DHHS employees, KeeSha Adams-Parks, Charlie Bennett, and Reckling, were still 

employed by DHHS. Adams-Parks, Bennett, and Reckling did 

not receive the summons and did not know they had been sued 

in their individual capacities.

On June 3, 2010, the State moved to dismiss all of the 

State defendants, including the State, DHHS, and the DHHS 

employees, based on lack of subject matter jurisdiction, lack 

of personal jurisdiction, lack of proper service of process, and 

failure to state a claim upon which relief could be granted.

On January 7, 2011, the district court sustained the motion 

to dismiss the State on causes of action one and two. It sustained the motion to dismiss DHHS and the DHHS employees 

in their official capacities due to lack of proper service. It 

sustained the motion to dismiss all the DHHS employees in 

their individual capacities (except Adams-Parks, Bennett, and 

Reckling) because they were no longer employees at DHHS.

On January 25, 2011, the district court supplemented its previous order. It determined the State was protected from suit by 

sovereign immunity. It found that the State and DHHS could 

not be liable for monetary damages under 42 U.S.C. § 1983 

when the State had not waived its immunity as a sovereign. It 

dismissed causes of action one and two as to the State. It overruled the State’s motion to dismiss as to the plaintiffs’ third 

through sixth causes of action.

The district court then addressed DHHS’ and the DHHS 

employees’ motion to dismiss for lack of proper service. It 

determined it lacked jurisdiction over DHHS and the DHHS 

employees in their official capacities, because the plaintiffs 

failed to properly serve them. It concluded that the plaintiffs were required to send a summons for DHHS and each 
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of the DHHS employees to the Attorney General in order to 

gain jurisdiction over them as required by Neb. Rev. Stat. 

§ 25-510.02 (Cum. Supp. 2014). It concluded that because the 

plaintiffs served only the Attorney General at his office, only 

the State had been properly served. Because the court lacked 

jurisdiction, it sustained the motion to dismiss for DHHS and 

the DHHS employees in their official capacities.

The district court found that it lacked jurisdiction over 15 

of the DHHS employees in their individual capacities, because 

they no longer worked for DHHS as of May 3, 2010, the date 

the summons were received at DHHS. Because Hayden, the 

DHHS employee who signed the certified mail receipts, had 

no personal knowledge whether the DHHS employees named 

in the plaintiffs’ complaint still worked at DHHS, was not 

a member of their personal households, did not reside with 

them, and had not been appointed or otherwise designated as 

an agent to receive personal mail for them, service by certified mail at DHHS was not proper. It dismissed the 15 DHHS 

employees in their individual capacities who no longer worked 

at DHHS. But the court withheld determination on AdamsParks, Bennett, and Reckling pending a hearing to determine 

if certified mail sent to DHHS was reasonably calculated to 

provide them with notice that they had been sued in their individual capacities. See Doe v. Board of Regents, 280 Neb. 492, 

788 N.W.2d 264 (2010).

At this point, the remaining defendants were the State as 

to the third through sixth causes of action and Adams-Parks, 

Bennett, and Reckling in their individual capacities.

On June 27, 2011, the district court held a hearing to determine whether the three remaining DHHS employees had been 

properly served in their individual capacities. The court found 

that the method the plaintiffs used did not properly serve 

Adams-Parks, Bennett, and Reckling and was not reasonably 

calculated to notify them that they had been sued in their individual capacities. The court dismissed Adams-Parks, Bennett, 

and Reckling. At this point, only the State remained as a 

defendant as to causes of action three through six.

On October 31, 2012, the State moved for summary judgment on causes of action three through six. Those issues 
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included whether the plaintiffs had standing to challenge the 

constitutionality of §§ 43-283.01 and 43-1312 and whether 

these issues were moot. The State argued that because the 

plaintiffs no longer resided in Nebraska and were no longer 

under the jurisdiction of DHHS, they therefore lacked standing 

to challenge the constitutionality of the statutes. In the alternative, the State argued the issues were moot.

The district court sustained the State’s motion for summary 

judgment. It again held that the State had not waived its sovereign immunity from suit under 42 U.S.C. § 1983 and could not 

be liable to the plaintiffs for monetary damages. It concluded 

that the plaintiffs lacked standing to challenge the constitutionality of §§ 43-283.01 and 43-1312, because they were not 

currently domiciled in Nebraska and had no intention of returning to Nebraska. As such, they had no personal stake in the 

outcome of their constitutional challenge. The court also concluded that the issues were moot and that the plaintiffs failed 

to show the likelihood of a similar case arising in the future in 

which the juvenile court would be unable to address the situation. It dismissed the plaintiffs’ third through sixth causes of 

action against the State.

On May 17, 2013, the plaintiffs filed this timely appeal. We 

moved the case to our docket on our own motion. See Neb. 

Rev. Stat. § 24-1106(3) (Reissue 2008).

IV. ASSIGNMENTS OF ERROR

The plaintiffs assign that the district court erred in (1) granting DHHS’ and the DHHS employees’ motion to dismiss on 

the basis of failure to properly serve, (2) finding that the State 

was entitled to sovereign immunity, (3) failing to find any 

exception to immunity protection, and (4) finding that they 

lacked standing to challenge the constitutionality of two statutes and that the issues were moot.

V. ANALYSIS

1. HHSand DHHS E

Motion to Dism

We first consider whether DHHS and the DHHS employees in their official capacities were properly served and then 
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discuss service upon the DHHS employees in their individual capacities.

(a) Service on DHHS and DHHS 

Employees in Their 

Official Capacities

Section 25-510.02 provides in part:

(1) The State of Nebraska, any state agency as defined 

in section 81-8,210, and any employee of the state as 

defined in section 81-8,210 sued in an official capacity 

may be served by leaving the summons at the office of 

the Attorney General with the Attorney General, deputy attorney general, or someone designated in writing 

by the Attorney General, or by certified mail or designated delivery service addressed to the office of the 

Attorney General.

It is undisputed that the plaintiffs properly served the State 

by serving summons on the Attorney General by certified 

mail. The plaintiffs argue that by properly serving the State 

at the Attorney General’s office, they also satisfied the statutory requirements to serve DHHS and the DHHS employees 

in their official capacities. The plaintiffs claim that service 

of one summons and one complaint on the Attorney General 

was sufficient to serve the State, DHHS, and the DHHS 

employees in their official capacities, because the statute 

does not require that the summons list each separately named 

defendant. They claim that serving the Attorney General with 

the complaint was sufficient notice to the State, because all 

the defendants were distinctly named in the complaint. And 

they assert that including each defendant’s name in the summons would only duplicate the notice the State received. 

We disagree.

The plaintiffs were required to send a separate summons and 

complaint to the Attorney General for each party to be served. 

The purpose of § 25-510.02 is to give the State, its agencies, 

and its employees “adequate notice of the case against it” and 

to “eliminate ineffectual service.” See Ray v. Nebraska Crime 

Victim’s Reparations Comm., 1 Neb. App. 130, 133, 487 

N.W.2d 590, 592 (1992). Such purposes would not be served 
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if a single summons could be served on the Attorney General 

no matter how many State agencies or State employees were 

being sued. Serving the Attorney General without naming the 

parties to be served would require the State to ascertain parties 

in the lawsuit and would thereby place an unreasonable burden on the State to determine which of its numerous departments or agencies or which of its thousands of employees 

were being sued. Additionally, requiring separate summons 

for each party served through the Attorney General is consistent with Neb. Rev. Stat. § 25-502.01 (Reissue 2008), which 

requires a plaintiff to file the name and address “of each party 

to be served” with the clerk of the court and state “the manner 

of service for each party.”

In order to properly serve DHHS and the 18 DHHS employees in their official capacities, the plaintiffs had to request a 

separate summons and complaint for each defendant and send 

all the summonses and complaints to the Attorney General. 

The plaintiffs did not do so. They served a single summons on 

Attorney General Bruning via certified mail at his office in the 

State Capitol. The summons was addressed only to Bruning 

as the Attorney General and did not list DHHS or any of the 

DHHS employees. No summons or complaint was served on 

the Attorney General for any of those defendants as required 

by § 25-502.01. Indeed, the proof of service showed that the 

plaintiffs served those defendants at DHHS, located at 301 

Centennial Mall South, in Lincoln.

By failing to serve separate summons on DHHS and the 

DHHS employees in their official capacities through the 

Attorney General, the plaintiffs failed to serve those defendants. The district court correctly determined that service on 

DHHS and the DHHS employees in their official capacities 

was not proper and dismissed them from the suit.

(b) Service on DHHS Employees in 

Their Individual Capacities

Eighteen DHHS employees were named in the plaintiffs’ 

complaint. As of May 3, 2010, when the summons were 

received at DHHS, 15 of them no longer worked for DHHS. 

Only Adams-Parks, Bennett, and Reckling still worked for 
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DHHS. The plaintiffs served all 18 DHHS employees in their 

individual capacities via certified mail at DHHS.

The plaintiffs do not claim that the 15 DHHS employees 

who no longer worked at DHHS at the time of service were 

properly served. The service method would not notify them 

they had been sued in the underlying lawsuit. The district court 

did not err in dismissing these 15 DHHS employees in their 

individual capacities.

The question remains whether Adams-Parks, Bennett, and 

Reckling were properly served via certified mail at their place 

of employment. The plaintiffs argue that certified mail to 

Adams-Parks’, Bennett’s, and Reckling’s employment address 

was all that was required to effectuate proper service. The 

State argues that serving the summons on these employees via 

certified mail at their place of employment was not reasonably 

calculated to apprise employees of the pendency of the action 

and that the three DHHS employees who still worked at DHHS 

never received the summons.

Because the DHHS employees were sued in their individual 

capacities, Neb. Rev. Stat. § 25-508.01(1) (Cum. Supp. 2014) 

governs service upon them. Section 25-508.01(1) provides that 

“[a]n individual party . . . may be served by personal, residence, certified mail, or designated delivery service.”

Section 25-508.01(1) allowed the plaintiffs to elect the 

method in which they wished to have service made on the 

defendants. Neb. Rev. Stat. § 25-505.01(c) (Cum. Supp. 2014) 

governs service by certified mail. It states that certified mail 

service “shall be made . . . within ten days of issuance, sending the summons to the defendant by certified mail with a 

return receipt requested showing to whom and where delivered 

and the date of delivery.” As we stated in Doe v. Board of 

Regents, 280 Neb. 492, 788 N.W.2d 264 (2010), § 25-505.01 

does not require service to be sent to the defendant’s residence or restrict delivery to the addressee. But due process 

requires notice to be reasonably calculated to apprise interested parties of the pendency of the action and to afford them 

the opportunity to present their objections. Doe v. Board of 

Regents, supra.
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The 18 summons were received by DHHS. Hayden, an 

employee of DHHS, signed the certified mail receipts for all of 

the DHHS employees. He did so as part of his duties to sign 

for certified mail addressed to DHHS. But Hayden was not an 

appointed agent or an otherwise designated agent of any of the 

defendants, was not one of their family members, and did not 

reside with any of the defendants. He testified that he did not 

know whether any of the named individuals received the mail 

for which he signed certified mail receipts.

Once the certified mail was signed for by Hayden, it is 

unclear where the mail was sent. But the evidence established 

that Adams-Parks, Bennett, and Reckling did not receive the 

certified mail and did not know about the summons until 

almost a year later.

We conclude that service by certified mail at DHHS was 

not “reasonably calculated to notify the defendants, in their 

individual capacities, of the lawsuit.” See Doe, 280 Neb. at 

496, 788 N.W.2d at 272. The plaintiffs elected to serve the 

defendants by certified mail at their place of employment. 

Although they were entitled to elect the method of service, 

they bore the risk that the method was not reasonably calculated to provide notice to the individual that he or she had been 

served. Hayden did not know whether Adams-Parks, Bennett, 

or Reckling worked for DHHS. He was not authorized to 

sign for their certified mail, and they did not receive the 

summonses. DHHS was the largest state agency of the State 

of Nebraska at the time the lawsuit was filed and employed 

nearly 6,100 employees located across the state. The method 

of service by certified mail at DHHS was not reasonably 

calculated to notify Adams-Parks, Bennett, and Reckling that 

they had been sued in their individual capacities. The district 

court properly dismissed all 18 DHHS employees in their 

individual capacities.

2. State’s Motion to Dis

The State moved to dismiss all six of the plaintiffs’ causes 

of action against it. The district court sustained the State’s 

motion as to the plaintiffs’ first and second causes of action, 

because it concluded that the State had not waived its sovereign 
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immunity as to § 1983 claims. But the court overruled the 

State’s motion as to the remaining four causes of action, which 

it determined “state[d] a claim against the State.”

We review de novo whether a party is entitled to dismissal of 

a claim based on federal or state immunity, drawing all reasonable inferences for the nonmoving party. Michael E. v. State, 

286 Neb. 532, 839 N.W.2d 542 (2013). Upon our de novo 

review, we find that the district court should have dismissed all 

six of the plaintiffs’ causes of action against the State.

(a) State Has Not Waived 

Sovereign Immunity

[5,6] The immunity of states from suit is a fundamental 

aspect of the sovereignty which the states enjoyed before 

ratification of the Constitution and which they retain today. 

Northern Ins. Co. of N. Y. v. Chatham County, Ga., 547 U.S. 

189, 126 S. Ct. 1689, 164 L. Ed. 2d 367 (2006), citing Alden 

v. Maine, 527 U.S. 706, 119 S. Ct. 2240, 144 L. Ed. 2d 636 

(1999). It is inherent in the nature of sovereignty for a state not 

to be amenable to the suit of an individual without its consent. 

Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 116 S. Ct. 1114, 

134 L. Ed. 2d 252 (1996).

[7] Neb. Const. art. V, § 22, provides that the State may 

sue and be sued and that the Legislature shall provide by law 

in what manner and in what courts suits shall be brought. 

McKenna v. Julian, 277 Neb. 522, 763 N.W.2d 384 (2009). 

We have interpreted this provision to mean that the State is 

permitted to lay its sovereignty aside and consent to be sued 

on such terms and conditions as the Legislature may prescribe. Id.

But Nebraska has not waived its sovereign immunity with 

regard to § 1983 suits brought against it. See, Stagemeyer 

v. County of Dawson, 192 F. Supp. 2d 998 (D. Neb. 2002); 

Winnie v. Clarke, 893 F. Supp. 875 (D. Neb. 1995); Shearer 

v. Leuenberger, 256 Neb. 566, 591 N.W.2d 762 (1999), disapproved on other grounds, Simon v. City of Omaha, 267 Neb. 

718, 677 N.W.2d 129 (2004); Patteson v. Johnson, 219 Neb. 

852, 367 N.W.2d 123 (1985); Wiseman v. Keller, 218 Neb. 

717, 358 N.W.2d 768 (1984). Neither did the enactment of 
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§ 1983 abrogate the State’s 11th Amendment immunity by 

creating a remedy against the State. See Will v. Michigan Dept. 

of State Police, 491 U.S. 58, 109 S. Ct. 2304, 105 L. Ed. 2d 

45 (1989), holding limited on other grounds, Hafer v. Melo, 

502 U.S. 21, 112 S. Ct. 358, 116 L. Ed. 2d 301 (1991). There 

is no waiver of immunity by the State that would allow the 

plaintiffs’ suit against it.

(b) Exemption to Immunity 

Protection Not Applicable

The plaintiffs argue that even though the State did not waive 

its sovereign immunity, it was nonetheless subject to liability 

in this instance because DHHS was implementing an unconstitutional “‘policy statement, ordinance, regulation or decision 

officially adopted’” and acting “‘pursuant to governmental 

“custom.”’” Brief for appellants at 23. Their argument relies 

upon Monell v. New York City Dept. of Social Services, 436 

U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978), and Poor 

Bear v. Nesbitt, 300 F. Supp. 2d 904 (D. Neb. 2004).

In Monell, 436 U.S. at 694, the Supreme Court held that 

local municipalities could be liable for damages under § 1983 

if the “execution of a government’s policy or custom, whether 

made by its lawmakers or by those whose edicts or acts may 

fairly be said to represent official policy, inflicts the injury” on 

the party. The court in Poor Bear, 300 F. Supp. 2d at 916, similarly held that local governing bodies could be sued directly 

under § 1983 where “‘the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, 

regulation, or decision officially adopted and promulgated by 

that body’s officers.’” Local governments could also be sued 

for “‘constitutional deprivations visited pursuant to governmental “custom” even though such a custom has not received 

formal approval through the body’s official decisionmaking 

channels.’” Id.

The plaintiffs argue that this exception to immunity applies 

to the State. We disagree. This exception to immunity applies 

only to local governments and not to State governments. 

The Supreme Court in Monell stated, “Our holding today is, 

of course, limited to local government units which are not 
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considered part of the State for Eleventh Amendment purposes.” 436 U.S. at 690 n.54. The court in Poor Bear, supra, 

also limited its holding only to local governing bodies. The 

plaintiffs do not cite to any authority that extends this exception to state governments.

(c) Immunity Barred All 

Six Causes of Action

The district court concluded that sovereign immunity barred 

only those causes of action against the State in which the plaintiffs’ requested monetary damages. This decision was consistent with Michael E. v. State, 286 Neb. 532, 541, 839 N.W.2d 

542, 551 (2013), in which we stated that “in an action brought 

under 42 U.S.C. § 1983, 11th Amendment immunity does not 

bar an action against a state or state officials for prospective 

declaratory or injunctive relief.”

But in the absence of a waiver, sovereign immunity bars all

suits against the State, “regardless of the relief sought.” See 

Kentucky v. Graham, 473 U.S. 159, 167 n.14, 105 S. Ct. 3099, 

87 L. Ed. 2d 114 (1985). See, also, Pennhurst State School 

& Hosp. v. Halderman, 465 U.S. 89, 104 S. Ct. 900, 79 L. 

Ed. 2d 67 (1984) (holding limited on other grounds by Will v. 

Michigan Dept. of State Police, 491 U.S. 58, 109 S. Ct. 2304, 

105 L. Ed. 2d 45 (1989), and superseded by statute on other 

grounds as stated in Joshua B. v. New Trier Tp. High School 

Dist. 203, 770 F. Supp. 431 (N.D. Ill. 1991)). Therefore, in 

Michael E., supra, we erred in stating that sovereign immunity 

did not bar an action against the State for prospective relief, 

and such statement is expressly disapproved.

To the extent our statement in Michael E. can be interpreted 

as suggesting that the State can be sued under § 1983 for prospective declaratory or injunctive relief, that interpretation is 

also disapproved. The State cannot be sued under § 1983 for 

prospective declaratory or injunctive relief. See Will, supra. 

The State is removed from the category of possible defendants 

in a § 1983 action by virtue of the fact that a state is not a 

“person.” See id.

The district court erred in not dismissing all of the plaintiffs’ 

causes of action upon the State’s motion to dismiss, because 
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they were all barred by sovereign immunity and because the 

State cannot be sued under § 1983. We note, however, that 

upon the State’s motion for summary judgment, the court dismissed the causes of action that survived the State’s motion 

to dismiss. Granting summary judgment in favor of the State 

accomplished the same result as sustaining the State’s motion 

to dismiss as to all causes of action—a complete dismissal 

of the plaintiffs’ complaint. The court reached the correct 

result, and we therefore affirm the dismissal of the plaintiffs’ complaint.

4. Standing and Mo

[8] The district court found that the plaintiffs did not have 

standing to bring their three causes of action challenging 

the constitutionality of §§ 43-283.01 and 43-1312. The court 

also concluded that those three causes of action were moot. 

The plaintiffs assign error to these determinations. However, 

because we have concluded that all of the plaintiffs’ causes 

of action should have been dismissed on sovereign immunity 

grounds, we need not address standing or mootness. An appellate court is not obligated to engage in an analysis that is not 

necessary to adjudicate the case and controversy before it. 

White v. Kohout, 286 Neb. 700, 839 N.W.2d 252 (2013).

VI. CONCLUSION

The district court properly dismissed DHHS and the DHHS 

employees in their official and individual capacities for lack 

of proper service of process. The court correctly determined 

that sovereign immunity barred the plaintiffs’ claims against 

the State for monetary damages under 42 U.S.C. § 1983. It 

erred in not dismissing all of the plaintiffs’ causes of action 

against the State upon the State’s motion to dismiss. Because 

the court achieved the same result by dismissing all remaining 

causes of action against the State on summary judgment, we 

affirm the dismissal of the plaintiffs’ complaint.

Affirmed

Cassel, J., not participating